I-601 Provisional Waiver

On January 3, 2013, the Department of Homeland Security issued the final rule for their new I-601A provisional waiver program.

Certain unlawfully present spouses and minor children of United States citizens will be able to apply for a waiver of unlawful presence if they can establish that deportation would result in “extreme hardship” to the United States citizen spouse or parent. If their “provisional waiver” is approved, they will have to return to their home country to process the green card application, but the process will be streamlined.

If you think you may be eligible to apply for the provisional waiver, call us at (413)584-3232 to schedule an appointment with Attorney Megan Kludt.

WHO CAN APPLY FOR THE PROVISIONAL WAIVER?

The provisional waiver is limited to the children or spouses of United States citizens who are residing in the United States illegally and require a waiver of inadmissibility. The program does not apply to individuals with U.S. citizen children. It also does not apply the minor children or spouses of green card holders.

WHAT DOES THE WAIVER HELP ME WITH?

The I-601A provisional waiver will help you if your only ground of inadmissibility is unlawful presence in the United States. You are not eligible to apply if you have other grounds of inadmissibility, such as a criminal background or an old deportation order.

WHAT IF I AM THE SPOUSE OR MINOR CHILD OF A GREEN CARD HOLDER?

This program is currently only available to the spouses and minor children of U.S. citizens. If the program is successful, the government may expand it later to include the spouses and children of green card holders.

HOW DO I APPLY FOR THE PROVISIONAL WAIVER?

First, your qualifying U.S. citizen spouse or parent must file an I-130 Petition for Immigrant Relative for you in the United States. Once it is approved, it will be forwarded to the National Visa Center to start processing your green card application in a consulate in your home country.

Once your consular case has begun, you will be asked to pay the green card application fees to the Department of State. After this, you will file your I-601A provisional waiver application in the United States.

If your waiver application is approved, you will be scheduled for a consular interview in your home country. The government has indicated it will attempt to streamline these interviews so you spend minimal time outside of the United States.

HOW MUCH DOES THE APPLICATION COST?

The application fee is $630, plus an $85 biometrics fee.

IS THERE A WAIVER OF THE FILING FEE IF I CANNOT AFFORD TO PAY IT?

No, all applicants must pay the filing fee, without exception.

IF MY I-601A IS APPROVED, CAN I APPLY FOR A LICENSE AND/OR A SOCIAL SECURITY CARD?

No, an I-601A approval does not confer any benefit or status. You cannot use the approval in any way until you return to your home country for your green card interview.

WHAT IF MY APPLICATION IS DENIED? WILL I GET DEPORTED?

When you apply for the provisional waiver, the government will know you are here in the United States illegally. However, they have said they will not deport anyone unless the person is a high priority to Immigration and Customs Enforcement. High priorities are immigrants with criminal records or multiple immigration violations who present a danger to the United States.

WHAT IF I AM IN REMOVAL PROCEEDINGS OR HAVE A FINAL ORDER OF REMOVAL?

If you have a final order of removal, you are not eligible to apply for the provisional waiver. This is true even if you have been granted Deferred Action.

If you are in removal proceedings, your case must be terminated or administratively closed before you can apply for the provisional waiver. If you are in removal proceedings, and you think you may be eligible for this program, please schedule an appointment with an immigration attorney to discuss your case.

IF MY I-601A APPLICATION IS DENIED, CAN I FILE AGAIN AT A LATER DATE?

Yes, there is no restriction on the number of I-601As you can file.

CAN I APPEAL MY I-601A DENIAL IF I DON’T LIKE THE DECISION?

No, this is a special application that is designed to be streamlined. There are no appeals or requests for reconsideration. If you do not like the decision, you may file your I-601A again.

CAN I PAY EXTRA MONEY TO EXPEDITE MY DECISION?

No, the government’s premium processing service is not available for the provisional waiver.

ARE THERE ANY OTHER RULES I SHOULD KNOW ABOUT?

I-601A is only available to children who are 17 or older, because children under 18 do not need a waiver for unlawful presence.

If you were scheduled for a green card interview in your home country prior to the new rule being issued on January 3, 2013, you are not eligible to apply for the provisional waiver. You must apply for the regular waiver from your home country.

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